Saturday, November 14, 2009

9/11 Trial: Politics Unusual?

As we've repeatedly asked in other contexts, how will this latest policy decision--to try KSM and his colleagues in civilian court--help make the U.S. more safe and secure? Insuring domestic tranquility is one of the key principles of the U.S. Constitution. And apart from the court security nightmare, to what end is the politicized Justice Department giving full Constitutional rights to what amounts to non-citizen war criminals, terrorists, and combatants picked up on the battlefield?

Writing in NationalReviewOnline, former federal terrorism prosecutor Andrew McCarthy claims the motivation is even more invidious:

This summer, I theorized that Attorney General Eric Holder — and his boss — had a hidden agenda in ordering a re-investigation of the CIA for six-year-old alleged interrogation excesses that had already been scrutinized by non-partisan DOJ prosecutors who had found no basis for prosecution. The continuing investigations of Bush-era counterterrorism policies (i.e., the policies that kept us safe from more domestic terror attacks), coupled with the Holder Justice Department's obsession to disclose classified national-defense information from that period, enable Holder to give the hard Left the "reckoning" that he and Obama promised during the 2008 campaign. It would be too politically explosive for Obama/Holder to do the dirty work of charging Bush administration officials; but as new revelations from investigations and declassifications are churned out, Leftist lawyers use them to urge European and international tribunals to bring "torture" and "war crimes" indictments. Thus, administration cooperation gives Obama's base the reckoning it demands but Obama gets to deny responsibility for any actual prosecutions.

Today's announcement that KSM and other top al-Qaeda terrorists will be transferred to Manhattan federal court for civilian trials neatly fits this hidden agenda. Nothing results in more disclosures of government intelligence than civilian trials. They are a banquet of information, not just at the discovery stage but in the trial process itself, where witnesses — intelligence sources — must expose themselves and their secrets.

...It will be a soapbox for al-Qaeda's case against America. Since that will be their "defense," the defendants will demand every bit of information they can get about interrogations, renditions, secret prisons, undercover operations targeting Muslims and mosques, etc., and — depending on what judge catches the case — they are likely to be given a lot of it.

Trying Khalid Sheikh Mohammed in civilian court will be an intelligence bonanza for al Qaeda, tie up our courts for years on issues best left to the president and Congress, and further cripple our intelligence agencies’ efforts to fight terrorists abroad.

KSM and his co-defendants will have all of the benefits and rights that the U.S. Constitution accords those who live here, most importantly the right to demand that the government produce in open court all of the information that it has on them, and how it was obtained.

Arrested spies commonly use this right to get a better deal out of the government, which will want to avoid opening up its intelligence sources and methods on KSM, what information it got from him, and what else it knows about his fellow al Qaeda operatives.

Finding out what the U.S. intelligence agencies know about al Qaeda will be an incalculable boon to the terrorist organization, which will be able to drop plans and personnel it knows are compromised, and push harder in areas we appear to know nothing about.

Our intelligence agents and military personnel will now have to conduct their capture of the enemy—often in battlefield conditions—under all of the strictures that apply to arrests of garden-variety criminals in the United States. Knowing that al Qaeda leaders may be tried in court, our soldiers and agents will have to gather evidence at the scene of “arrest” and secure it to the standards of a civilian court, all while entering a hostile environment, protecting their own personnel, and leaving without casualties.

Former Attorney General Michael Mukasey, who as a judge presided over a trial stemming from the first attack on the World Trade Center, on Friday warned that the Obama administration's decision to bring Sept. 11 mastermind Khalid Sheikh Mohammed to New York, along with three other terrorist detainees, to stand trial in a civilian court, reflected a pre-9/11 mindset that viewed terrorism as a simple criminal matter.

Speaking at the Federalist Society's National Lawyers Convention, Mukasey described the move, as “a decision I consider not only unwise, but based on a refusal to face the fact that what we are involved with here is a war with people who follow a religiously-based ideology that calls on them to kill us, and to return instead to the mindset that prevailed before Sept. 11 that acts like the first World Trade Center bombing, the attacks on our embassies in Africa and other such acts can and should be treated as conventional crimes and tried in conventional courts.”

Mukasey added that the current administration seems to develop policy decisions "to fit and proceed rhetoric."

Despite the legal roadblocks thrown up by the "detainee lobby," the Bush administration should have pushed much harder to get these individuals tried by military commissions. Depending upon your point of view, the U.S. Supreme Court didn't help, but the Bush Justice Department has to bear significant responsibility for its lack of action. On the other hand, defense lawyers with this odd fixation with terror suspects (can we call them terrorists?) must be suffering an extreme form of what used to be called Bush Derangement Syndrome. Forget the politics; law-abiding citizens, society at large, also have rights to be protected, don't they?